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September 20, 2004

More insights on severability

In posts here and here last week, I raised various practical questions about the reach and consequences of the Solicitor General's arguments that, if Blakely applies to the federal system, then the federal guidelines are not severable. But, lest I be accused of placing pragmatism over principle, I should note here that I have thought from the outset that principled severability analysis also would support finding the guidelines severable because to do so seems to me to be more in keeping with the intent of Congress when it passed the Sentencing Reform Act.

Helpfully, late last week I received a copy of a district-court brief (with the client's name redacted) filed by Patrick O'Donnell of the firm of Harris, Wiltshire & Grannis, which does an extremely effective job of articulating why I have instinctually felt that finding the guidelines severable would better effectuate the intent of Congress when it passed the SRA. This brief can be downloaded below, and here are a few key passages:

The legislative history of the Sentencing Reform Act of 1984 (SRA) shows no particular intention by Congress that judges rather than juries find sentencing elements, and the determinative-sentencing Guidelines system can operate with either judge or jury finding such elements. Moreover, the legislative history does show a very deliberate effort to cabin judicial power, and Blakely’s holding that the Sixth Amendment requires juries rather than judges to find sentencing elements is entirely consistent with Congress's purposes in enacting the SRA....

Taking the Guidelines as "advisory" only while proceeding to sentence on Guidelines-driven judicial fact-finding, as the government suggests, is tantamount to simple defiance of not just Blakely's instruction but of Congress itself. That approach would defy Blakely by simply following the Guidelines approach and denying the defendant's Sixth Amendment right to a jury verdict on the decisive accusations, while giving lip service to Blakely itself. And it would defy Congress in at least three ways: 1) the frustration of Congress's decision to implement a determinative sentencing system, 2) the rejection of the value judgments made by the Sentencing Commission and approved by Congress regarding specific offense conduct, and 3) the judicial adoption of an alternative Congress expressly rejected: "[t]he Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory." Mistretta, 488 U.S. at 367.

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...except, of course, for the fact that Congress wouldn't intend that a person who's stolen or $400,000,000 to get a sentence of 4-10 months. (See, e.g., 2B1.1). I suppose it's another question of practicality v. philosophy. The "practical" intent of Congress is to have defendants sentenced as closely to the adopted Guideline as possible. "Congress's intent is to sentence defendants to X months." Any judicial action causing such intent to be frustrated could thwart the entire point of the whole system, and it would be better to have advisory Guidelines (with the possibility that judges would give sentences near the intended Guideline range) than it would be to have low, mandated, uniform sentences.
The "philosophical" intent of Congress is nicely expressed in the post. Yes, Congress wanted to decrease disparity and tighten up judicial discretion. Therefore, a judicial action declaring the Guidelines unconstitutional would certainly thwart that intent (and the true purposes of Blakely itself!). Therefore, let's keep the mandatory system, even at the expense of "suitable" punishment for offenders.

Perhaps this is why Justice Scalia thinks that attempting to discern Congressional intent in legislative action is so ridiculous. It seems even more ridiculous in the Blakely context, where we are asking, "Okay, Congress, imagine we [the Court] say you can't have reduced judicial discretion AND a certain level of sentences for criminals, which would you rather have, reduced discretion or sentences closer to what you originally had in mind?" PUH-leeze.

Honestly, I'd guess if you polled Congress, a strong majority would rather have the old system with punishment more closely mirroring the Guidelines ranges than allowing "dangerous" or "evil" criminals out in a year or so. But that hypothesis isn't exactly the best basis for some legislative interpretation maxim.

Posted by: District Clerk Battling Blakely | Sep 20, 2004 4:33:32 PM

How many actual cases in the federal courts now involve persons who have stolen $400,000,000 and will now get a sentence of 4-10 months? Is there more than one or two such cases actually in the pipeline (that have not be effectively Blakely-ized)?

I agree that Congress, and members of the public, would be troubled by your "underpunished Enron executive" hypo. But how many cases like that really exist, and didn't some of them exist already pre-Blakely because of prosecutiorial plea bargins?

In a world where in which a very, very large number of of non-violent offenders are getting overpunished (see today's WSJ article), I am not going to be too trouble by one or two corporate crooks getting off (especially because I suspect more than that number were aleady finding a way to get breaks in the old system).

Posted by: Doug B. | Sep 20, 2004 4:46:59 PM

I don't disagree with you at all, Prof. Berman, and I didn't intend my comment to be taken as a suggestion that nonseverability is the "right" way to go. And my example was extreme... frankly, it was the first one that I came across in the USSG. My point was merely that the "Congressional intent" argument can be equally divided by the pragmatic/principled distinction that pervades so much of the sentencing debate.
To argue that Congress's "intent" in passing the SRA and subsequent amendments was to limit judicial discretion and seek sentencing uniformity is to argue Congress's apparent "principled" intent. To argue that Congress's intent in implementing the Guidelines was to set specific ranges for specific crimes is to argue Congress's apparent "practical" intent. And I think that most members of Congress would (as a matter of personal preference) prefer a "practical" outcome to a "principled" one, because politicians generally want to be perceived as "tough on crime" rather than as "allowing offenders off on 'technicalities.'" That doesn't mean the "practical" outcome is right, nor does it mean that I prefer the "practical" outcome. It does mean that I feel that trying to discern legislative intent, especially in a situation where a court asks "which of two unintended outcomes is less abhorrent to Congress," is little more than a reflection of the decision-maker's personal choice--practical or principled.

Posted by: district clerk battling blakely | Sep 20, 2004 5:39:00 PM

I can prove that my public defender and the district attorney, and the judge in the Beverly Hills Court are breaking the law by falsely convicting me of 4 felonies when my case was a misnomeaner. They are trying to send me to prison for a crime that does not fit.

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